State v. Giddings, 50306

• Decision Date: 09 June 1979
• Docket Number: No. 50306,50306
• Citation: 595 P.2d 1115,226 Kan. 110
• Parties: STATE of Kansas, Appellee, v. Betty L. GIDDINGS, Appellant.
• Court: Kansas Supreme Court

Page 1115

595 P.2d 1115

226 Kan. 110

STATE of Kansas, Appellee, v. Betty L. GIDDINGS, Appellant.

No. 50306.

Supreme Court of Kansas.

June 9, 1979.

Syllabus by the Court

In an appeal from a conviction of first degree murder under the felony murder rule, the record is examined and it is held: the court did not commit error in (1) admitting certain physical evidence; (2) refusing to give instructions requested by defendant; (3) admitting in evidence pretrial statements made by the defendant; and (4) overruling defendant's motion for a judgment of acquittal at the close of the state's evidence.

Darrel W. Frogley, Kansas City, argued the cause and was on the brief for appellant.

Dennis L. Harris, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.

HOLMES, Justice:

This is a direct appeal by defendant-appellant Betty L. Giddings from a conviction by a jury of one count of first degree murder under the felony murder rule K.S.A. 21-3401. The underlying felony was robbery.

The victim, Jack D. Reynolds, was a pipefitter from Enid, Oklahoma, and had been working near St. Marys, Kansas. On Sunday, January 15, 1978, at 10:00 a. m., Reynolds left his home for St. Marys in anticipation of going to work on Monday. He intended to visit friends in Topeka and watch the Super Bowl game Sunday afternoon. Sunday night about 10:30 p. m., Reynolds was found lying alongside State Avenue in Kansas City, Kansas. The lower part of his body was wrapped in a blanket, subsequently identified as belonging to the defendant, and tape was wrapped around one of his wrists. Reynolds had been shot twice in the head with a .22 caliber weapon and died the next morning at the University of Kansas Medical Center.

The only evidence of what may have occurred between 10:00 a. m. and 10:30 p. m. that Sunday is in three inconsistent statements given by defendant and her lengthy testimony at trial. The gist of all her statements and testimony was to the effect that she was an innocent bystander and that her sometime live-in boy friend, Jerry Clayton, was solely responsible. Clayton was charged but has not been apprehended and tried.

We will not attempt to state the complicated facts that may be gleaned from the various inconsistent statements and testimony of the defendant other than to the extent necessary to consider her points on appeal.

Appellant's first argument is that it was error for the trial court to admit into evidence a sawed-off shotgun, shotgun shells, a hacksaw and photographs of the same items. As Reynolds was killed with a .22 caliber weapon, it is obvious that these items were not the murder weapons. The shotgun had been taken on January 11th by appellant and Clayton from her stepfather's house in Osborne, Kansas. At the time, the appellant was trying to raise money to get a daughter out of jail in Beloit. The hacksaw and shotgun shells had been purchased in Osborne and the hacksaw was used to saw the barrels off the shotgun. Appellant and Clayton had traveled to Beloit in a rented car and returned to Kansas City on January 14th or 15th. On the night of the 15th they first made contact with the victim and ultimately he was shot, and defendant and Clayton departed with the victim's truck and other belongings. The hacksaw was found in the trunk of the car admittedly used by appellant and Clayton during the robbery and murder and the other items were discovered at appellant's home along with property which belonged to the victim. The trial court found the evidence to be relevant and admitted it as part of the res gestae. Relevant evidence is evidence having any tendency in reason to prove any material fact and the determination of relevancy is a matter of logic and experience, not a matter of law. State v. Nemechek, 223 Kan. 766, 576 P.2d 682 (1978). Subject to certain exclusionary rules the admission of evidence lies within the sound discretion of the trial court. State v. Jakeway, 221 Kan. 142, 558 P.2d 113 (1976); State v. Wasinger, 220 Kan. 599, 556 P.2d 189 (1976); State v. Baker, 219 Kan. 854, 549 P.2d 911 (1976). The items admitted in evidence bore a reasonable relationship to the facts as determined from the statements and testimony of the defendant. Appellant's first point is without merit.

Appellant's second point concerns the refusal of the trial court to give certain requested instructions. The underlying felony upon which the felony murder conviction was based was the robbery of the victim. Certain property of the victim was found in appellant's home, the blanket in which Reynolds was wrapped belonged to appellant and appellant and Clayton collaborated in the sale of the victim's truck. Appellant contended throughout her various statements and testimony that Clayton was the culprit and she was an innocent bystander who could not manage to escape. The trial court gave instruction No. 5 based upon PIK Crim. 54.05 (1975 Supp.) as follows:

"A person is criminally responsible for the conduct of another, when, either before or during the commission of a crime and with the intent to promote or assist in the commission of the crime, she intentionally aids or advises the other to commit the crime."

Appellant did not object to this instruction but requested in addition to it a variation of PIK Crim. 54.06, which reads:

"A person who intentionally (aids) (hires) another to commit a crime is responsible for any other crime committed in pursuance of the intended crime, if such crime was reasonably foreseeable."

Appellant argues that the foreseeability instruction should have been given based upon K.S.A. 21-3205(2) and in addition she requested an instruction on robbery as being the underlying felony.

K.S.A. 21-3205 provides in part:

"21-3205. Liability for crimes of another. (1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.

(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by him as a probable consequence of committing or attempting to commit the crime intended."

Appellant argues that as the court gave an instruction based upon K.S.A. 21-3205(1), she was entitled to an instruction based upon 21-3205(2) and the failure to give such an instruction deprived her of the defense of a lack of foreseeability that the murder might result. While it is true that foreseeability is a requirement to the application of the felony murder rule, this requirement is satisfied once it is determined that the felony is inherently dangerous to human life. This point was covered in State v. Branch and Bussey, 223 Kan. 381, 573 P.2d 1041 (1978):

"To apply the felony murder rule, it is only necessary to establish that defendants committed a felony inherently dangerous to human life and that the killing took place during the commission of the felony. (State v. Guebara, 220 Kan. 520, 523, 553 P.2d 296; State v. Goodseal, 220 Kan. 487, 553 P.2d 279.) A requirement of the felony murder rule is the fact the participants in the felony could reasonably foresee or expect that a life might be taken in the perpetration of such felony. If applied to the facts of the present case, defendants are subject to the felony murder rule and it makes no difference that the killing was accidental.

"A felon's attempt to commit a robbery sets in motion a chain of events which should cause him to contemplate that a death might occur. This is particularly true of a robber who carries a deadly weapon (as these robbers did) and forces his way into an occupied dwelling. The impulse for an individual to resist the sudden show of force, to defend himself or to come to the aid of a family member or loved one, is a basic human instinct. Under such circumstances every robber who expects human opposition to his quest to steal, as he must when he commits a statutory robbery, is a potential assassin because he knows he may be forced to use his weapon either to carry out his criminal act or to escape without being pursued and captured by his victim. In a felony inherently dangerous to life the intent to accomplish the initial felony is transformed into malice and premeditation upon the death of a human being and the felon is guilty of first degree murder. . . .

"We conclude...